Select Committee on European Scrutiny Fourth Report


COM(01) 259

Draft Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking.

Legal base: Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
Document originated: 23 May 2001
Forwarded to the Council: 27 June 2001
Deposited in Parliament: 16 July 2001
Department: Home Office
Basis of consideration: EM of 9 October 2001
Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


3.1  At the Tampere European Council in October 1999, Member States agreed on a commitment to establish common definitions and penalties for a number of offences, including drug trafficking. The European Union's Action Plan on Drugs (2000-2004) calls on the Commission to propose measures aimed at introducing minimum rules on the constituent elements of and penalties for trafficking in illegal drugs.

     The document

3.2  The draft Framework Decision defines drug trafficking and related offences, and provides for maximum penalties of not less than five years' imprisonment in serious cases. The Framework Decision also provides for a number of aggravating and mitigating circumstances to be taken into account in sentencing, for the liability of legal persons, and for the making of rules on jurisdiction.

3.3  The definition of trafficking is set out in Article 1. It defines 'illicit drug trafficking' as:

    "The act, without authorisation, of selling and marketing as well as, for profit, of cultivating, producing, manufacturing, importing, exporting, distributing, offering, transporting or sending or, for the purpose of transferring and for profit, of receiving, acquiring and possessing drugs".

3.4  The intention therefore appears to be to exclude users who produce, acquire or possess drugs for personal use, as well as users who pass on drugs with no profit-making motive. The Commission's Explanatory Memorandum describes the notions of acting 'for profit' and 'without authorisation' as essential criteria in the definition.[7]

3.5  "Drugs" are defined in Article 1(2) as being any of the substances covered by the UN Single Convention on Narcotic Drugs 1961 (as amended by the 1972 Protocol), the 1971 Vienna Convention on Psychotropic Substances and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, as well as the substances subject to controls under Joint Action 97/396/JHA of 16 June 1997.[8] It therefore includes drugs which are classed as class A, B or C under the Misuse of Drugs Act 1971 and covers precursor chemicals used to produce illicit drugs.

3.6  Article 2 requires Member States to take the necessary measures to make illicit drug trafficking a criminal offence, and Article 3 provides for incitement, aiding and abetting and attempts also to be made criminal.

3.7  Article 4 provides for penalties. It requires Member States to provide for maximum sentences of not less that five years' imprisonment in 'serious' cases. 'Serious' is not defined. The Article also requires provision to be made for confiscation of drugs, of the means used to traffick them and for confiscation of the proceeds of trafficking as well as the 'advantages directly or indirectly derived' from that trafficking.

3.8  Article 5 requires Member States to provide for a maximum sentence of not less than seven years' imprisonment where the offence is committed in one of a number of 'aggravating circumstances'. These include being part of an organised criminal group, use of weapons or violence, trafficking in or near schools, youth clubs, leisure centres and drug treatment and rehabilitation centres. They also include the case where a doctor, pharmacist, court official, police officer, customs officer, prison officer, probation officer, teacher, instructor or person working in an educational establishment abuses his position to commit the offence.[9] The fact that an offender has been previously convicted of a similar offence in any Member State is also to be treated as an aggravating circumstance.

3.9  Article 6 requires Member States to provide for mitigating circumstances, so as to ensure that the penalties referred to in Article 4 can be reduced if the offender has supplied the competent authorities with information about the identity of other offenders or has helped to identify drug-dealing networks.

3.10  Articles 7 and 8 provide, respectively, for liability and penalties in relation to legal persons. 'Legal person' is defined in Article 1(3) as 'any entity having this status by virtue of the applicable national law, with the exception of States or other public bodies exercising their public service mandate and international public organisations'.

3.11  Article 7(1) requires Member States to ensure that legal persons can be made criminally liable where the offence of drug trafficking is committed for their benefit by any person who has a 'power of representation' of the legal person, or who has an 'authority to take decisions' or 'an authority to exercise control' in relation to the legal person. Article 7(2) requires Member States to ensure that a person 'can be held liable where the lack of supervision or control by that legal person made possible' the commission of the offence by an employee or subordinate for the benefit of that legal person.

3.12  Article 9 provides for jurisdiction and requires Member States to make rules to establish jurisdiction where the offence is committed entirely or partly within their territory. In addition, Member States are to make rules to establish jurisdiction where the offender is a national or where the offence is committed for the benefit of a legal person established in that Member State. However, in these latter cases, Member States may decide not to make such rules or to limit their application to specific cases or circumstances. Those Member States which do not extradite their own nationals are required by Article 9(3) to establish jurisdiction over their own nationals where the offence is committed outside their territory.[10]

3.13  Articles 10 to 12 provide for cooperation between Member States, implementation, reports and entry into force.

The Government's views

3.14  In his Explanatory Memorandum the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) assesses the policy implications of the proposal in these terms:

    "Our initial view is that the proposed definitions of drug trafficking offences in the Framework decision, whilst very comprehensive in their remit, are generally appropriate and acceptable. They are likely to be largely compatible with our existing definitions and those that will be included in the Proceeds of Crime Bill. There are some gaps in UK legislation to be filled in order to be fully compliant with the definitions. For example, the unauthorised import or export of benzodiazepines (drugs listed in the UN Convention) is not currently a criminal offence in the UK. However, action is in hand to bring in controls in these areas. Other difficulties may emerge as legal experts clarify and negotiate the definitions, particularly relating to offences by legal entities.

    "With regard to the proposals on common penalties, our view is that the Framework Decision fails to provide sufficiently dissuasive penalties for large scale drug trafficking in the most harmful drugs. The proposed maximum penalty of 5 years (7 years with aggravating circumstances) applies only to cases which are deemed "serious". Although the accompanying commentary includes some guidelines as to what may be deemed serious, these guidelines have no legal basis. Ultimately, it is left to Member States to use their discretion as to what they regard as 'serious'. This may lead to widely differing interpretations, defeating the objective to have common maximum sentences.

    "The levels of penalty proposed are disappointingly low. The proposed maximum sentence of 5 years imprisonment for serious drug trafficking, and 7 years where there are aggravating circumstances, compares to a current maximum sentence in the UK of life imprisonment for trafficking in class A drugs such as heroin and cocaine, and 14 years for class B drugs such as amphetamines and cannabis.

    "In addition the penalties of 5/7 years do not compare well with other recently negotiated instruments. The EU has already agreed to minimum maximum penalties of 8 years for counterfeiting offences (including counterfeiting the euro) and 8 years for facilitation of illegal immigration. When the penalty for facilitation was agreed a number of Member States, including the UK, declared that they would apply a minimum maximum penalty of 10 years.

    "To summarise, we believe that the penalties proposed would add little if any value in our fight against drug trafficking in the EU. Indeed they might send a message that [Member States] were softening their approach to criminals who deal for example in large quantities of heroin or cocaine. We believe that a number of other countries share our concerns. Indeed, the Commission's research study showed that for the most serious forms of drug trafficking, for example as part of an organised criminal group or involving large quantities of harmful substances, almost all other Member States have a maximum penalty available of at least 10 years and many considerably higher. We therefore intend to lobby EU partners to join with us in calling for much higher minimum maximum penalties, in the order of 10-12 years."


3.15  We note that this proposal is at an early stage of negotiation and we are grateful for the Minister's undertaking to keep us informed of any substantial amendments. In the meantime, we ask the Minister for his comments on the following points.

3.16  The definition of "illicit drug trafficking" in Article 1 depends, at least in part, on the notion of profit, but this is not required under the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs, or under the Misuse of Drugs Act 1971. The Framework Decision therefore appears to have a narrower scope than existing instruments on drug trafficking.

3.17  We note that the proposal contains elaborate provisions on aggravating and mitigating circumstances to be taken into account in sentencing, but that no attempt has been made to define what is meant by 'serious' for the purposes of the minimum sentence of five years under Article 4(1). We would be grateful to know if the Minister intends to put forward any proposals in this regard.

3.18  The meaning of Article 5(1)(c) (under which an aggravating circumstance arises where the offence involves 'persons who are unable to exercise their free will') is far from clear, and we ask the Minister to explain the scope of this provision, in particular as to whether its effect is to make in all cases the supply to drug addicts an aggravated circumstance.

3.19  Article 5(1)(e) sets out a somewhat random list of offices for the purposes of determining whether an aggravating circumstance arises. The list excludes some medical professionals, such as nurses and psychiatrists, and many holders of public office. We would be grateful for the Minister's views on the purpose of this provision, and on whether it would be more appropriate to refer generally to abusing a position of trust, or to the provision in Article 5(e) of the 1988 United Nations Convention (which refers to offences connected with the holding of public office).

3.20  We note that the grounds of jurisdiction under Article 9 appear to be narrower than those provided for under the law of the United Kingdom, or under the 1988 United Nations Convention. We would be grateful if the Minister would confirm that the adoption of the Framework Decision in its present form would not prevent the United Kingdom from maintaining its broader rules of jurisdiction, or from becoming party to international conventions, such as those adopted under the auspices of the United Nations, which have more extensive rules of jurisdiction.

3.21  We shall hold the present document under scrutiny pending the Minister's reply.

7  The 1988 UN Convention against Illicit Traffic in Narcotic Drugs refers to manufacture, production, supply etc. on any terms whatsoever. The offence under s.4(1) Misuse of Drugs Act 1971 is committed when a person supplies or offers to supply a controlled drug to another. The making of a 'profit' is not an ingredient of the offence.  Back

8  OJ No. L 167, 25.6.1997, p.1. Back

9   The 1988 UN Convention is wider in this regard, since it refers to the holding of a public office by the offender and the connection of the offence with the office in question. Back

10  These requirements seem narrower than those under e.g. the 1988 UN Convention which, inter alia, requires jurisdiction to be established over non-nationals who have their habitual residence in the national territory. See also the definition of 'drug trafficking' in s.1 Drug Trafficking Act 1994. Back

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Prepared 14 November 2001